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David v. Superior Court of Tulare County

Court of Appeals of California, Fifth District.
Nov 6, 2003
No. F043650 (Cal. Ct. App. Nov. 6, 2003)

Opinion

F043650.

11-6-2003

DAVID B., Petitioner, v. THE SUPERIOR COURT OF TULARE COUNTY, Respondent; TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest.

Albert Garcia, for Petitioner. No appearance for Respondent. Kathleen Bales-Lange, County Counsel, and Deputy County Counsel, Bryan C. Walters, for Real Party in Interest.


OPINION

THE COURT

Before Dibiaso, A.P.J., Buckley, J., and Cornell, J.

Petitioner, father of minor H., seeks an extraordinary writ (Cal. Rules of Court, rule 39.1B) to vacate the orders of the juvenile court made at the 12-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing. We will deny the petition.

All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

STATEMENT OF THE CASE AND FACTS

Five-year-old H. has been the subject of dependency proceedings intermittently since June 1998 when he was first detained at the age of five months after his parents, petitioner and Heather, were arrested for being under the influence of controlled substances. Over the ensuing five years, petitioner was incarcerated for drug and battery charges and Heather was involuntarily committed and ultimately institutionalized in an out-of-state psychiatric hospital. During that time, H. was passed between biological parents and his paternal grandmother, depending on Heathers mental state and petitioners in-custody status. In their care, H. suffered neglect, as well as emotional and physical abuse.

The instant dependency proceedings arose in May 2002 when H.s paternal grandmother contacted the Tulare County Health and Human Services Agency (agency) and reported that petitioner had not returned home for some time and that she could no longer control then four-year-old H.s behavior. At that time, petitioner was evading an arrest warrant and Heather was an inpatient in a lock-down mental health facility. H. was detained and placed with the first of three prospective adoptive foster families. His foster mother reported that he had burn marks on his right shoulder and a scar on the middle of his stomach which he attributed to Heather. He also reported being spanked repeatedly with a belt by his paternal grandmother. He also stated that he did not want to see his biological parents again and wanted to hurt them "real bad" when he got older because they were mean to him. While in this foster home, H. received mental health counseling through Tulare Youth Services.

On July 9, 2002, the juvenile court conducted the dispositional hearing. Neither parent was present. The court assumed dependency jurisdiction and ordered a case plan for both parents. Petitioners case plan required him to turn himself in to the authorities, complete a parenting course, participate in a substance abuse evaluation, and recommended treatment and submit to random drug testing upon his release from custody.

In its six-month status review, the agency reported that petitioner was incarcerated and expected to be released in August 2003. While in jail, he was participating in a residential substance abuse program. The agency also reported that H. was moved to a second prospective adoptive foster home in Hanford in early December 2002. The agency recommended the court terminate reunification services for both parents because petitioner would not be released in time to complete his case plan before the 12-month review hearing and Heather was living out of state and had not maintained contact with the caseworker.

The six-month review was conducted on January 3, 2003. Petitioner appeared for the first time, in custody. The court ordered continued services and ordered the agency to notify H.s therapist when petitioner was released from custody to begin conjoint therapy and introduce H. to petitioner in a therapeutic setting. The court set the 12-month review hearing for July 2, 2003.

On January 23, 2003, caseworker Sylvia Jauragui referred H. for counseling at Visalia Youth Services because it was closer to his foster parents Hanford residence. However, despite this accommodation, the foster parent did not transport H. for counseling. Ms. Jauragui discovered this lapse in mid-March 2003 and, before the end of the month, transferred H. to a third prospective adoptive home located in Porterville. She also referred H. to clinical psychologist Edwyn W. Ortiz-Nance, Ph.D. to assess H.s relationship with his parents and paternal grandmother. In mid-April 2003, Ms. Jauragui initiated documentation to transfer H.s counseling services from Visalia Youth Services to Porterville Youth Services.

On March 15, 2003, Dr. Ortiz-Nance evaluated H. and concluded he was not bonded with his parents or his paternal grandmother or distressed by his separation from them. Dr. Ortiz-Nance recommended against forced visitation with petitioner, fearing it might retraumatize H. However, he suggested that future supervised visitation might be feasible through progressive contact monitored by the foster mother. Dr. Ortiz-Nance estimated that such an intervention could take, at a minimum, five to six months.

In its 12-month status review, the agency reported petitioner was released from custody on April 2, 2003, and was compliant with all court-ordered services. He was participating in outpatient drug treatment, testing negative for drugs and participating in parenting classes. The agency also reported that H. was evaluated at Porterville Youth Services on June 5, 2003 and that the therapist was aware of the plan for conjoint therapy. The therapist planned to meet with H. and petitioner individually and begin conjoint sessions in July or August 2003. However, the agency also reported that H. was afraid of petitioner and did not want to visit him. In light of petitioners impaired relationship with H., the running of the statutory limit on reunification and the foster mothers desire to adopt H., the agency recommended the court terminate reunification services.

On August 5, 2003, the court held a contested hearing on the reasonableness of H.s counseling services. After hearing the testimony of Ms. Jauragui and argument, the court found petitioner received reasonable services and complied to the best of his ability after his release from incarceration. However, the court also found that return of H. to petitioners custody would be detrimental to H. given H.s state of mental health. The court also found there was not a substantial probability H. would be returned to petitioners custody within another six months. Accordingly, the juvenile court terminated reunification services and set a section 366.26 hearing for December 3, 2003. This petition ensued.

DISCUSSION

Petitioner faults the agency for failing to ensure that H. received uninterrupted mental health counseling. He argues the lapse in H.s therapy from December 2002 through July 2003 precluded any possibility of conjoint counseling or visitation during the reunification period and required a finding the agency failed to make reasonable efforts to facilitate reunification. We disagree.

At the 12-month review hearing, the juvenile court must determine whether reasonable services were provided or offered. (§ 366.21, subd. (f).) Reasonable services were provided if the supervising agency offered services designed to remedy the problems requiring removal of the child and made reasonable efforts to facilitate compliance. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) If the court finds the parent was not offered or provided reasonable services, the court must continue reunification services. (§ 366.21, subd. (g)(2).) We review the juvenile courts finding reasonable services were provided or offered for substantial evidence. (Angela S. v. Superior Court (1995) 36 Cal.App. 4th 758, 762.)

In this case, substantial evidence supports the juvenile courts reasonable services finding. The record reflects the caseworker promptly referred H. for counseling near his foster home each time he was moved. The only notable deficiency is the caseworkers failure to regularly communicate with H.s prospective adoptive parent to ensure she was transporting H. for his therapy sessions. Though, the caseworker could have done more to make sure H. was receiving continuing mental health counseling, the standard is not whether the services provided were ideal but whether the services were reasonable under the circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) On this record, we conclude the agency made reasonable efforts under the circumstances to provide H. mental health counseling.

Further, at the 12-month review hearing, the juvenile court may continue services for up to six months if reasonable services have been provided and the court finds there is a substantial probability that the child will be returned to the physical custody of his or her parent within the extended period of reunification. (§ 366.21, subd. (g)(1).) To the extent petitioner also challenges the juvenile courts finding there was not a substantial probability that H. would be returned to his custody within another six months, his claim is meritless. In order to find a substantial probability of return, the juvenile court must find all of the following: (1) the parent consistently and regularly maintained contact and visitation with the child; (2) the parent made significant progress in resolving the problems that led to the minors removal; and (3) the parent demonstrated the capacity to complete the objectives of the case plan and provide for the minors safety, protection and physical and emotional well-being.

In the instant case, there had been no contact or visitation between petitioner and H. and, according to Dr. Ortiz-Nance, it would take five to six months of careful intervention to get them to the point of having any contact at all. Beyond that, it would be purely speculative as to whether reunification would be possible and how long that would take. As real party points out, no one can force a timeline on a child such as H. who has suffered so intensely and carries such deep animosity toward a parent. We therefore conclude substantial evidence also supports the juvenile courts finding there was not a substantial probability H. would be returned to petitioners custody within another six months of services. Accordingly, we affirm the courts orders terminating reunification services and setting the section 366.26 hearing.

DISPOSITION

The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.


Summaries of

David v. Superior Court of Tulare County

Court of Appeals of California, Fifth District.
Nov 6, 2003
No. F043650 (Cal. Ct. App. Nov. 6, 2003)
Case details for

David v. Superior Court of Tulare County

Case Details

Full title:DAVID B., Petitioner, v. THE SUPERIOR COURT OF TULARE COUNTY, Respondent…

Court:Court of Appeals of California, Fifth District.

Date published: Nov 6, 2003

Citations

No. F043650 (Cal. Ct. App. Nov. 6, 2003)